Howard v. Alford

| N.Y. App. Div. | Jul 12, 1996

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Defendants appeal from an order that denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (7). The complaint alleges six causes of action for slander and libel, based upon a statement by defendant Alford to a newspaper reporter that was published in an article in the Buffalo News on January 29, 1994. The article discussed the termination of plaintiff and two others then employed by defendant Adam, Meldrum & Anderson (AM&A), and noted that the terminations were in part attributable to disappointing sales at AM&A during the Christmas season in 1993. According to the article, defendant Alford stated: "We did a little restructuring of our senior staff and these people weren’t producing as we thought they should.” Supreme Court denied the motion and determined that the statement was reasonably susceptible of a defamatory connotation and was not an expression of personal opinion. That was error.

"Where a plaintiff alleges that statements are false and defamatory, the legal question for the court on a motion to dismiss is whether the contested statements are reasonably susceptible of a defamatory connotation” (Armstrong v Simon & Schuster, 85 NY2d 373, 380; see also, Aronson v Wiersma, 65 NY2d 592, 593). Defendant Alford’s statement does not impute to plaintiff fraud, dishonesty, incompetence, incapacity, or unfitness in the performance of his trade. The mere expression that plaintiff had not met his employer’s expectations is not slanderous or libelous per se (see, Aronson v Wiersma, supra, at 594; Angel v Levittown Union Free School Dist. No. 5, 171 AD2d 770, 772-773). In any event, because the statement was an expression of defendant Alford’s opinion of plaintiff’s efforts as an employee of AM&A, it is constitutionally protected (see, Miller v Richman, 184 AD2d 191, 193; Williams v Varig Brazilian Airlines, 169 AD2d 434, 438, lv denied 78 NY2d 854). We therefore reverse the order and dismiss the complaint in its entirety. (Appeal from Order of Supreme Court, Erie County, Sconiers, J.—Dismiss Complaint.) Present—Green, J. P., Law-ton, Wesley, Callahan and Boehm, JJ.